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Establishing Inequality

18 Pages Posted: 23 Apr 2009  

Gene R. Nichol Jr.

University of North Carolina (UNC) at Chapel Hill - School of Law


This essay explores, modestly criticizes, but principally applauds Martha Nussbaum’s strong linkage of establishment and free exercise jurisprudence with the demands of human equality. Her wide-ranging study of the religion clauses touches something at the core of American citizenship. No bosses. No masters. No insiders. No outcasts. More idiosyncratically, I also explore and expand on Nussbaum’s thesis in light of a modestly serious and rather public dispute over religious equality that occurred at the College of William and Mary during my presidency there. A disagreement over the display of religious symbols in a public university, to my surprise, echoed more in traditional claims of equality and privilege than I would have assumed. I am candid in claiming that my own experiences suggest, perhaps unfortunately, that Nussbaum is rather acutely on to something when it comes to the central meaning of the protection of religious liberty in a diverse and democratic culture. A respect for the equal status of dissenters animates the religion clauses and highlights the crucial nature of their implementation.

Suggested Citation

Nichol, Gene R., Establishing Inequality. Michigan Law Review, Vol. 107, No. 6, 2009; UNC Legal Studies Research Paper No. 1392447. Available at SSRN:

Gene R. Nichol Jr. (Contact Author)

University of North Carolina (UNC) at Chapel Hill - School of Law ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States
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